Antitrust Enforcement in Traditional v. Online Platforms

Transcription

1 Antitrust Enforcement in Traditional v. Online Platforms Platforms as facilitators of concerted practices introduction to panel European University Institute - Fiesole, 4 December 2015 Hein Hobbelen

2 Agenda Some initial reflections on the use of Big Data, Big Analytics and collusion Are we confused about the term platform? Platforms as facilitators of concerted practices - some recent case law 2

3 Some initial reflections on the use of Big Data, Big Analytics and collusion 1 Section

4 Big Data and Big Analytics Data has always played a key role in market economies But now age of datification (Big Data) And Big Analytics including use of (self-learning) algorithms Commission: Big Data can boost EU economic growth (1.9% GDP increase by 2020) Big Data brought about proliferation of online platforms Big Data and Analytics now are at the heart of commercial strategies Leading to mergers But also to concerted practices? And is there anything new? 4

5 Possible concerted practices? Ezrachi and Stucke identify four categories of possible forms of concerted practices following new technological developments Messenger Use of computers to assist in implementing and/or monitoring a cartel Hub and Spoke Use of an algorithm to determine a market price charged by numerous users what if cluster of vertical agreements? Predictable Agent Humans design a machine to deliver predictable outcomes and react in a given way to changing market conditions can an industry wide adoption of an algorithm have an anti-competitive effect? Autonomous Machine Machines programmed to determine means to achieve given target (e.g. optimise profit) through self-learning and experiment most challenging category? Query whether competition law and antitrust authorites are well-equipped to deal with all these potential forms of collusion appropriately? 5

6 Print divider Are we confused about the term platform? Section 2

7 Definition of the term platform are we confused? European Commission Consultation Paper on Platforms etc. (2015) Online platform: an undertaking operating in two (or multi-) sided markets, which uses the Internet to enable interactions between two or more distinct but interdependent groups of users so as to generate value for at least one of the groups? German Bundeskartellamt Paper on Digital Economy (2015) Platforms are undertakings that, in the role of an intermediary, enable direct interaction between two or more sides of users, between which there are indirect network effects. Third party cartel facilitator providing a (one-sided?) platform for a cartel? (e.g. CJ in AC-Treuhand v Commission) European Parliament 2015: impossible to have a single definition of online platforms Terminology platforms and one/two/multi-sided markets not to be confused 7

8 Platforms as facilitators of concerted practices - some recent case law 3 Section

9 AC-Treuhand AG v European Commission (C-194/14) Facts of the case AC-Treuhand, a consultancy firm, and various suppliers of heat stabilisers alleged to have participated in a cartel (tin stabilisers and ESBO/esters) AC-Treuhand argued: provided certain services but did not participate in an agreement or concerted practice Some key take-aways GC s and CJ s judgments Article 101 TFEU covers all practices that distort competition, irrespective of whether parties operate in same market AC-Treuhand organised, attended and actively participated in cartel meetings and received remuneration for acting as moderator between producers Conduct was directly linked to effort of the cartelists not merely peripheral services AC-Treuhand in full knowledge of facts Effectiveness of Article 101 endangered if facilitators such as AC-Treuhand could escape liability Quid impact platforms as facilitators of concerted practice? 9

10 Eturas and Others (C-74/14) Facts of the case Eturas - Lithuanian online travel booking system for travel agencies System notice: discounts for online bookings capped at 3% - technical restriction implemented Lithuanian Competition Council fined Eturas as third party facilitator Appeal to the Lithuanian Supreme Administrative Court reference to CJ Some key take-aways Advocate General s opinion Eturas active on the relevant market (travel agents) different from Treuhand where third party not active on the relevant market Particular relevance: Eturas had consulted some agents prior to the notice and had technical ability to enforce cap automatically and immediately Undertakings should have dissociated themselves at least to system administrator and companies they can identify Quid impact platforms as facilitators of concerted practice? 10

11 Case AT.39861, Yen Interest Rate Derivates Facts of the case ICAP: UK-based dealer broker assess trading availability and execute trades of securities/instruments for wholesale market participants also post trade risk mitigation and information services Commission investigation 2004: trading services in a particular instrument constitute two-sided market ICAP fined 14.9 million for facilitation of 6 of 7 cartels in YIRD sector Facilitation by using its contacts with a number of LIBOR panel banks not participating in the infringement, to influence their JPY LIBOR submissions Also served as communications channel between trader of Citigroup and trader of RBS Exchange of commercially sensitive information between traders relating to trading positions or future LIBOR submissions Quid impact platforms as facilitators of concerted practice? 11

12 Two-sided markets: Cartes Bancaires and MasterCard Some key take-aways from a private practitioner s perspective Payment card systems are two-sided: (i) serve two distinct groups of customers with joint demand; (ii) have network externalities Balance issuing and acquiring activities to determine whether measures foreclosed new entrants Cartes Bancaires: GC wrongly only analysed market of issuing cards, failed to analyse market for payment systems i.e. failed to take into account two-sided nature of the platform In a two-sided system: take into account all advantages flowing from a measure on the market in respect of which the restriction has been established and the market which includes the customers associated with that system (MasterCard) 12

13 Some concluding observations Be careful not to confuse platforms with two/multi-sided markets Technological developments bring about new challenges but it appears that antitrust concepts can be applied relatively easily to them Recent EU case law seems to reinforce the tools of antitrust authorities to tackle possible concerted practices by or through (online) platforms However quid artificial intelligence? Quid role of regulation? 13

14 Questions & answers? 14

15 Thank you Hein Hobbelen T E hein.hobbelen@freshfields.com LinkedIn: BRU This material is provided by the international law firm Freshfields Bruckhaus Deringer LLP (a limited liability partnership organised under the law of England and Wales) (the UK LLP) and the offices and associated entities of the UK LLP practising under the Freshfields Bruckhaus Deringer name in a number of jurisdictions, and Freshfields Bruckhaus Deringer US LLP, together referred to in the material as Freshfields. For regulatory information please refer to The UK LLP has offices or associated entities in Austria, Bahrain, Belgium, China, England, France, Germany, Hong Kong, Italy, Japan, the Netherlands, Russia, Singapore, Spain, the United Arab Emirates and Vietnam. Freshfields Bruckhaus Deringer US LLP has offices in New York City and Washington DC. This material is for general information only and is not intended to provide legal advice. Freshfields Bruckhaus Deringer LLP 2015

16 References (in order of appearance) Commission Consultation Paper Regulatory Environment for Platforms, Online Intermediaries, Data and Cloud Computing and the Collaborative Economy, 24 September December 2015, Bundeskartellamt Paper Digital Economy Internet Platforms between Competition Law, Privacy and Consumer Protection, 1 October 2015 Case C-194/14 P, Judgment of the Court of Justice of 22 October 2015, ECLI:EU:C:2015:717 - AC-Treuhand AG v European Commission Case C-74/14, Opinion of Advocate General Szpunar of 16 July 2015, Eturas and Others v Lietuvos Respublikos konkurencijos taryba Case AT.39924, Commission Decision of 21 October Swiss Franc Interest Rate Derivates Case AT.39914, Commission Decision of 4 December Euro Interest Rate Derivatives Case AT.39861, Commission Decision of 4 February Yen interest rate Derivates 16

17 References (in order of appearance) (cont d) S. Greenaway, Competition between stock exchanges: findings from DG Competition s investigation into trading in Dutch equities, Competition Policy Newsletter 2005 (Autumn, Number 3), Case C-67/13 P, Judgment of the Court of Justice of 11 September 2014, ECLI:EU:C: 2014: Groupement des cartes bancaires (CB) v European Commission Case-382/12 P, Judgment of the Court of Justice of 11 September 2014, EU:C:2014:2201 MasterCard and Others v European Commission A. Ezrachi & M.E. Stucke, Artificial Intelligence & Collusion: When Computers inhibit Competition, The University of Oxford Centre for Competition Law and Policy, Working Paper CCLP (L) 40, 8 April